Wednesday, May 4, 2011

Personal Values and Legislating Morality: Majorities do not always get their way

Efforts at the Minnesota Legislature to ban same-sex marriages and abortion raise an important question: Should citizens or majorities be entitled to enact their morality into law and impose those beliefs upon others? In other words, should elections translate personal morality into public policy? While values-based voting may be permissible in some situations, such a stance is contrary to the basic principles of a democratic society that values toleration and individual rights.

Constitutional republics or democracies like the United States are constructed with the premise that it is majority rule subject to the protection of minority rights. The is the logic of the American constitutional system as designed by James Madison and the constitutional framers, and this is why we have a bill of rights. Majority rule is the law of the land, subject to important checks and limitations. Majorities are generally allowed to make policy, but it does not extend to choices that are discriminatory, persecute minorities, or impose religious-moral principles upon others. It is this latter limitation that seems to be the subject of dispute in contemporary America, especially with religious fundamentalists. What we have here is a difference in contrasting views of the United States and the relationship between church and state or morality and the law.

The United States is the product of two political foundings or traditions. The first is an older religious tradition dating back to our Puritan-Pilgrim founding. Such a view—seeing America as the last great hope to found John Winthrop’s “shining city on the hill”—depicts government as inseparable from religious-moral principles. Here, the government’s purpose is to improve the moral quality of the community and it citizens by enacting into law the moral preferences of the majority—at least so long as they reflect the word of God.

But a second founding owes its origins to the Spirit of 1776. It is a political tradition—referred to as Liberalism—that traces back to the British political philosopher John Locke and to Thomas Jefferson and the Founding Fathers who signed the Declaration of Independence, the Constitution, and the Bill of Rights. It is a secular view of society where government must respect individual moral choices, opting to be neutral regarding how its citizens define their vision of the good society and life for themselves.

A critical difference between the Religious and Liberal traditions lies in their rival views on morality and government. A Religious tradition accepts as legitimate a majority using the government and the political process as a means of translating personal moral values into public policy that may be imposed upon others.

Conversely, the Liberal tradition rejects this practice as illegitimate. Be it James Madison stating that we must prevent a majority faction from using its power to threaten the public good or hurt the rights of others, or Alex DeTocqueville discussing the importance of restricting the tyranny of the majority, a hallmark value of a Liberal society is that majority rule is tempered by minority rights.

While America is the product of two political foundings, the Liberal tradition supplanted the religious one with the adoption of the Constitution and the Bill of Rights. The principles of a free society demand that the government remain neutral towards individual moral choices. Why? As John Stuart Mill and Liberal philosophers argued, political neutrality regarding our personal moral choices respects individual rights. It also recognizes that the majority ‘s views may not be correct or that God may not be on their side, that it is no one’s business how I live my life (if I hurt no one else), or that simply a minority may view the world differently from others. If a majority can secondguess my moral choices on abortion, or whom I decide to marry, why not also legislate to make many other personal choices illegal, such as what books I choose to read, movies I wish to view, or how I wish to make a living.

Central to the concept of a Liberal society is the idea of toleration. I may not personally have an abortion, decide to smoke, drink, or gamble, but my personal views on these subjects should not dictate how others choose to conduct their lives.

Similarly at the state capitol I hear many argue that they should not have to pay for woman’s abortions because they morally object. They miss the point. Political society is not for the selfish and anti-social. There are lots of things the government funds that I may not use or support. However, I am willing to pay taxes for them both because others find them useful or because they too will pay taxes to support things I use but cannot pay for. Political society is cooperative, not selfish. I do not expect my moral values to govern the lives of others in the same way I do not expect their values to dictate my choices.

St. Augustine wrote in On Christian Doctrine that individuals can only be held morally responsible for their actions if they have a choice. God gave humans the choice to sin in order to preserve but moral responsibility and to give us dignity. He was correct. Deny women the right to choose and you take away their moral responsibility. Force others to follow your moral values and they are denied their agency to make choices. The essence of a free society is the capacity to make a choice. “Free to choose" as Milton Friedman once said.

The error religious fundamentalists lies in failing to understand the crucial difference between voting on conscience and expecting others to live by the choices I make for myself. Political toleration and the principles of a free society recognizes that America is a morally and religiously diverse nation and that using government and the political process to impose a single moral vision upon all of us is illegitimate.

3 comments:

Stunning explanation of the two perspectives. Sadly, revisionist history of the Founders' beliefs seems to supplant the rational and reasoned arguments of this essay. "I KNOW the Founding Fathers made this a Christian Nation!" I wish those wise gentlemen were here to speak for themselves.

I generally agree with where Prof. Schultz is coming from in this, or maybe more accurately, with his desire to intelligently balance democratic self-government and constitutional pluralism. It's just way easier desired than done.

Prof. Schultz's formulation: "[Liberalism] (classically understood) so recognizes that the majority ‘s views may not be correct or that God may not be on their side, that it is no one’s business how I live my life (if I hurt no one else), or that simply a minority may view the world differently from others."

Even though I am pro-choice, I recognize that the power of pro-life argument rests on the "fact" that "someone" IS hurt, in fact, egregiously hurt, or literally terminated. The fatal flaw of Justice Blackmun's opinion in Roe v. Wade was that this was a "scientific question." Not only is it not a scientific question, it can't be a scientific question because it's not falsifiable. It is, however, an ethical question, a legal question, or most fundamentally, a question of the contours of an axiom.

That there is a subtext of millennia societal regulation of sex and its greater consequences is certainly part of the issue, but that tends to be de-emphasized as newer ideologies provide the grammar and logic of the activists on either/any side.

On the other hand, prohibition of smoking in enclosed "public" (yet, privately owned) spaces provides a more useful example of liberalism (classically understood) and how its staunchest citers get it really wrong. Contra Sue Jeffers (who, IMO, epitomizes the shallowness of the libertarian right), smoking in a bar is about as far from a private choice as there is. "Modern" liberals not only have a compelling theory of public accomodations that allows general legislation to dictate what goes on in private space, but also addresses another aspect of otherwise private contracts - employment relations - where workplace health and safety concerns for employees in a private business are legitmate matters of public policy. (Note: as a smoker myself, I never considered it my right to impose a dry cleaning bill on my fellow patrons).

The problem is Prof. Schultz, that moral skepticism is also a moral stand - albeit one I think particularly important and honorable.

Needless to say, a whole canon could be developped to address this. Oh, that's right, it has, and it still hasn't settled anything.

BTW, I just heard an ad for a local TBTF which assured me it was God-like. No particular relevance, or is it?

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.